Vol 7 No 1 - Roger Williams University School of Law

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directly or indirectly.159 In other words, a primary market is anexisting market in which the person claiming protection alreadyearns or reasonably expects to derive revenue. A related market,by contrast, includes each of the following (1) any market in whicha person claiming protection with respect to a collection ofinformation has “taken demonstrable steps” to offer in commercewithin a short period of time a product or service incorporatingthat collection of information with the reasonable expectation toderive revenue, directly or indirectly (i.e., a “zone of probableexpansion,” to borrow a phrase from trademark law) and (2) anymarket in which products or services that incorporate collectionsof information similar to a product or service offered by the personclaiming protection are offered and in which persons offering suchsimilar products or services derive or reasonably expect to deriverevenue, directly or indirectly (i.e., virtually any potential marketin which a compilation of information or substantial portionthereof might reasonably be expected to earn revenue).160The original language of the bill would have extended itsprotection to any “actual or potential market” of a database, anddefined a “potential market” as any market in which a claimantfor protection “has current and demonstrable plans to exploit orthat is commonly exploited by persons offering similar products orservices incorporating collections of information.”161 The ClintonAdministration was sufficiently concerned over the breadth of thisproposed language that in testimony before the HouseSubcommittee on Courts and Intellectual Property the GeneralCounsel of the United States Department of Commerce, Andrew J.Pincus, suggested that the Subcommittee reexamine the conceptsof “actual” and “potential” markets.162 Yet, apart fromsubstituting the word “related” for the word “potential,” the finalbill seems not to have responded to the Administration’s concerns.As we have seen, the EU Database Directive limits thepermissible exceptions to the sui generis right in electronicdatabases to extraction for the purposes of illustration forteaching or scientific research, and only so long as the source isindicated and to the extent justified by the non-commercial159. Id. §§ 1401(3)-(4), 1402.160. Id. § 1401(4).161. See H.R. 354 §§ 1401(3), 1402, 106th Cong. (Jan. 19, 1999) (as originallyintroduced in the House of Representatives).162. See Pincus Statement, supra note 132, at 5.
purpose to be achieved.163 By contrast, H.R. 354 not only containsa specific privilege for certain non-profit educational, scientificand research uses164 (as well as a variety of other specificprivileges165), but also contains a much broader “reasonable use”privilege,166 which is reminiscent of the fair use privilegecontained in section 107 of the United States Copyright Act.While this “reasonable use” provision was apparently considered anecessary concession to domestic critics of earlier versions of thebill, the resulting difference in the scope of permissible uses underH.R. 354 and the EU Database Directive raises the questionwhether H.R. 354 would in fact provide protection “comparable” tothe sui generis right mandated in the EU Directive.The question of comparability becomes still murkier when theterms of protection under H.R. 354 and the EU Database Directiveare compared. While both provide for a fifteen year term ofprotection that is subject to extension in order to protectcumulatively substantial updating of the database, the EUDatabase Directive apparently mandates a dynamic approach thatwould protect a new edition in its entirety, whereas H.R. 354adopts a variable term of protection that would only protect thenew material in the new edition.167Article 10 of the EU Database Directive states that anysubstantial change to the contents of a database that causes thedatabase to be considered a substantial new investment qualifies“the database resulting from that investment”—and not simplythe new material—to its own term of protection. The databaseproducer is apparently under no obligation to distinguish whatdata in that database is new and what has been previouslyprotected.By contrast, H.R. 354 states (1) that no action may “bemaintained for making available or extracting all or a substantialpart of a collection of information that occurs more than 15 yearsafter the portion of the collection that is made available orextracted was first offered in commerce following the investment163. EU Database Directive, supra note 4, at art. 9(b).164. H.R. 354 § 1403(b), 106th Cong. (1999).165. Id. § 1403(c)(i) (allowing individual items and other insubstantial parts,independently gathered information, verification purposes, news reporting, transfer ofcopy, genealogical information, and investigative, protective, or intelligence activities).166. Id. § 1403(a).167. Id. § 1409(c).
Page 3: ROGER WILLIAMS UNIVERSITYLAW REVIEW
Page 7 and 8: ROGER WILLIAMS UNIVERSITYSCHOOL OF
Page 9: Identification StatementThe Roger W
Page 12 and 13: contract exclusion or disclaimer of
Page 14 and 15: and other laws of countries in whic
Page 16 and 17: Symposium and writes on this issue
Page 18 and 19: Indeed, the quotation contains the
Page 20 and 21: suggestive of a bill designed merel
Page 22 and 23: United States ought to adopt in lig
Page 24 and 25: the Supreme Court to reiterate in F
Page 26 and 27: United States Supreme Court quoted
Page 28 and 29: copying of “a work protected unde
Page 30 and 31: shall be null and void.65 Member st
Page 32 and 33: determining the fate of database pr
Page 34 and 35: The compilation of a database requi
Page 36 and 37: management information, including c
Page 38 and 39: one congressional witness noted:
Page 40 and 41: that were made after the initial te
Page 42 and 43: preferred language of many business
Page 44 and 45: the sui generis right mainly serves
Page 46 and 47: the Paris Convention for the Protec
Page 50 and 51: of resources that qualifies that po
Page 52 and 53: wish to encourage private lawsuits,
Page 54 and 55: contract.”185 While section 1405(
Page 56 and 57: The Directive will inevitably drive
Page 58 and 59: the process through which digital p
Page 60 and 61: the United States or the trade and
Page 62 and 63: patent law is the utilitarian ethic
Page 64 and 65: a work to be publicly identified as
Page 66 and 67: the United States, the power of the
Page 68 and 69: Theory one proposes to reward the a
Page 70 and 71: of intellectual property rights mus
Page 72 and 73: only such as are original, and are
Page 74 and 75: emedies set forth in section 1406.T
Page 76 and 77: eproduced, though there be no ingen
Page 78 and 79: the same, or substantially the same
Page 80 and 81: with respect to “patents of inven
Page 82 and 83: Because, in part of the joint reaso
Page 84 and 85: even by the plaintiffs today.86The
Page 86 and 87: statute: the “Limited Times” re
Page 88 and 89: head of power. It is not clear whet
Page 90 and 91: elationship of power between the Co
Page 92 and 93: history dealing with either provisi
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Page 96 and 97: the legislative power contained in
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negative pregnant that suggests tha
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scope of the Commerce Clause in the
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gave incentive for people to expres
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ejected this purported distinction
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talk, communicate or consume inform
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frameworks that will allow diversit
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that a monopolist should not seek t
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motivating force.While antitrust or
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unjustifiable anti-competitive cond
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his refusal to sell or license his
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defense and exploitation of the cop
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the information age there have been
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In response to Intel’s argument t
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Court of First Instance in concludi
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to oust competitors, there was noth
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as a digital property owner, which
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anti-competitive use of monopoly po
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certain circumstances, exempted fro
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for circumventing a technological p
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DMCA creates an exclusive right in
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circumventing a TPM in order to loo
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“staple article of commerce” do
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commerce.”320 Is innovation stifl
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anner advertisement company DoubleC
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the subject. Demographic informatio
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important to know whether a contrac
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information rights and legislated c
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this value is difficult to apportio
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Association (WIPO) will administer
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the new environment.For example, th
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implemented. As this section will h
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ight. First sale is an important di
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sign a hard copy contract containin
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to digital property. As well, free
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desirable to sellers and buyers ali
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ural and remote areas, where access
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as “high-speed telecommunications
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decrease innovation.30 On the other
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could be called a trespass, since a
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inform what permissible access and
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Universal Music Group uses software
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Taking UCITA on the Road: WhatLesso
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the debate has centered on whether
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It is against this background that
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similarities as well as differences
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as well, such as the American Bar A
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American Law Institute refused to p
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enactment of the draft. This led to
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such application.35 To the extent,
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transactions involving goods other
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quite controversial.49 As the histo
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provisions of Article 2 (based in p
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form license of information.63 Alth
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principles articulated in several i
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to by industry groups, with the res
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powers going well beyond the UNIDRO
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Contracts deals with unfair terms i
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worth a thousand words. Picture a d
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types of provisions being sought by
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law is a complex one.125 Although s
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the intellectual property balance o
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Other Substantive IssuesThere are,
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law,153 and many of UCITA’s provi
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nature of law-making both domestica
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Transactions Act).
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acts of copyright infringement.7 Un
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these rights.I. ISP LIABILITY FOR T
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Cubby, the court in Stratton Oakmon
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liability for third-party content.5
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network and removed the edition of
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subscribers’ conversations.84 Fur
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holder.92 Contributory liability ap
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and Klemesrud on the counts of dire
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eport, the White Paper on Intellect
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imposed ISP liability both in insta
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any infringing material either upon
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provider liability, the European Co
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of a defamatory statement.While saf
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defamation.184 One case that illust
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material that appears questionable
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FBI’s Carnivore: Is the Governmen
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and the legal limits of government
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II. CONSTITUTIONAL ANALYSISA. Const
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application developed in Katz v. Un
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Amendment protections.50Substantial
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communicating over the Internet pos
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court will likely, as it has often
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unconstitutional.81 Although CALEA
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data attributable to the target sus
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FBI facility for subsequent examina
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EPCA Section 2518 provides that upo
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The FBI has stated that its use of
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provision,143 but judging from the
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